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Sherbano Moosa v. Erich. Holder

May 5, 2011


Petition for Review of an Order of the Board of Immigration Appeals. No. A076 775 172

The opinion of the court was delivered by: Wood, Circuit Judge.


Before CUDAHY, FLAUM, and WOOD,Circuit Judges.

Sherbano Moosa, a citizen of Pakistan, entered the United States on a visitor's visa in 1995 and remained after her visa expired. Moosa was eventually ordered removed, but she apparently ignored that command and remained in the country. Nearly seven years later, Moosa filed a motion to reopen her proceedings with the Board of Immigration Appeals ("Board"). In her motion, Moosa argued that "changed country conditions" in Pakistan made her eligible for asylum and warranted reopening her case. Moosa also asked the Board to reopen her case on its own motion. Finding insufficient evidence of changed circumstances and a failure to present a prima facie case for asylum, the Board denied Moosa's motion and declined to reopen the proceedings on its own. Moosa now petitions this court for review of the Board's decision. She offers three grounds for relief: first, that the Board abused its discretion by denying her motion in a manner that exceeded its authority; second, that it used procedures that fell below constitutional due process standards; and third, that it committed legal error as it analyzed her evidence of changed conditions. None of these is enough to override the Board's broad authority here, however, and so we deny the petition for review.


Moosa legally entered the United States on a 6-month non-immigrant visa in June 1995, but, as we noted, she overstayed that term. Seeking to become a lawful permanent resident, but without much more than this intention, Moosa applied for an adjustment of status to that of permanent resident three years later. Moosa's application, however, offered no reason that the governing laws would recognize for granting this relief, and not surprisingly, her application was denied. See 8 U.S.C. §§ 1255-58. The legacy Immigration and Naturalization Service instituted removal proceedings against Moosa in 2000.

At her removal hearing before an Immigration Judge ("IJ"), Moosa's lawyer advised her to invoke her Fifth Amendment right to remain silent. Consistent with this questionable counsel, see INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984) (holding that a "deportation proceeding is a purely civil action," not a "criminal" proceeding), Moosa refused to answer even the IJ's most basic questions, covering such topics as her country of origin, her initial reasons for visiting the United States, her reasons for pursuing permanent residency, and her marital status. Stymied, the IJ turned to the information in Moosa's adjustment of status application; this made her removability obvious. Indeed, Moosa's attorney spoke up on one point and asserted that Moosa had no fear of returning to Pakistan. The IJ entered a removal order, and-on the basis of the lawyer's comment-noted that Moosa had no desire to seek other relief, such as asylum, withholding of removal, or a claim under Article 3 of the U.N. Convention Against Torture. The Board affirmed without opinion in 2002.

Like many others before her, Moosa remained in the country despite the removal order. See, e.g., Kucana v. Holder, 130 S. Ct. 827, 832 (2010); Liang v. Holder, 626 F.3d 983, 984 (7th Cir. 2010); Cheng Chen v. Gonzales, 498 F.3d 758, 759 (7th Cir. 2007). Almost seven years later, and represented by new counsel, Moosa filed a motion to reopen her proceedings in 2009. Such a motion ordinarily must be filed within 90 days, but Moosa argued that changed circumstances in Pakistan should exempt her from the time requirement. See 8 U.S.C. § 1229a(c)(7). To succeed, Moosa needed to point to evidence materially related to her asylum application and unavailable or undiscoverable at the time of her initial hearing in 2001. Id. And, to be eligible for asylum, Moosa would ultimately need to establish her status as a "refugee" in Pakistan, which requires demonstrating a well-founded fear of future persecution attributable to her "race, religion, nationality, member-ship in a particular social group, or political opinion."

8 U.S.C. § 1158(b)(1)(B).

Moosa argued that if forced to return to Pakistan she faced a serious risk of persecution on account of her membership in the social group of "single Westernized women." Moosa remains a committed Muslim, but she maintains that, after 15 years of continuous residency in the United States, she has come to identify with the social and political beliefs of Western women. She holds pro-democratic values; she believes herself entitled to equal treatment with men; and she is accustomed to exercising broad personal choice. Citing an influx of Taliban forces in the northwest region of Pakistan near the Swat Valley in 2009 (an area approximately 900 miles from Moosa's home)-and an attendant spread of strict Sharia law there-Moosa argued that mistreatment of women and other persons with Western values has escalated. Moosa further claimed that women like her are frequently harmed by religious leaders in the Taliban, who force women to adhere to different social roles than men, afford women fewer rights, and subject them to physical violence if these women do not adequately comply with the tenets of Islam as understood in Sharia law or are perceived as opposing it. Moosa believes that her time in the United States has made her Westernization and opposition to certain tenets of Islam either obvious or easily imputed to her, and thus that she has a legitimate fear of persecution based on her social group.

For support, Moosa pointed to a variety of sources: news articles from 2008 and 2009 describing the rise of the Taliban and spread of Sharia law in and around the Swat Valley; reports from human rights groups de-scribing conditions faced generally by women in Pakistan (which are especially tough for those in rural regions); a U.S. Department of State report from 2001 describing the Taliban's "war against women" in Afghani-stan; and the State Department's 2008 human rights report and its July 2009 travel warning for Pakistan. Moosa also submitted an affidavit personally describing her fear of persecution.

In an opinion signed by one member, the Board denied Moosa's motion, citing two grounds. First, it found that Moosa failed to show changed circumstances because the record was barren of any material, either in her current motion or the administrative record generally, that would establish country conditions in Pakistan at the time of her 2001 hearing. Second, the Board found that Moosa could not make out a prima facie case for asylum because the evidence she submitted was too speculative to demonstrate a well-founded fear of persecution. In explaining its second finding, the Board discussed the substance of Moosa's evidence but noted that Moosa failed to point to "specific passages" in her numerous exhibits "that actually corroborate[] her sweeping assertion regarding the treatment of single women in Pakistan." The Board did not mention Moosa's affidavit. It ultimately concluded that Moosa's motion did not demonstrate changed circumstances and denied her request for asylum as untimely. Finding no exceptional circumstances, and again pointing to Moosa's failure to make out a prima facie showing for asylum, the Board also denied Moosa's request to reopen her proceedings as a matter of its discretion. This petition followed.


Before this court, Moosa argues that the Board abused its discretion in denying her motion to reopen. But in light of the Board's broad discretion to deny a motion to reopen, see Kucana, 130 S. Ct. at 834, we will not reverse the Board's decision "unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular ...

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